In the current debate about reform of the Muslim Marriage and Divorce Act of 1956 (MMDA), those opposed to reform are arguing that all reform must be consistent with the Shariah – or to be more precise their own interpretation of the Shariah. Moreover, that all reform must be in accordance with the Shafi school of law. I argue that the making of Muslim law in any given context is very much a human act of interpretation, and therefore subjective, selective and creative, albeit based on knowledge of the sources of law as well as hermeneutics (theory and methods of interpretation) of law. As Coulson, one of the foremost scholars of Muslim law, points out:

While law may be God-given, it is man who must apply the law . . . and between original divine proposition and the eventual human disposition is interposed an extensive field of intellectual activity and decision.[1]

It is this basic dialectic between what Coulson refers to as revelation (naqi) and reason (‘aql) that has driven the dynamism, development and continued relevance of Muslim law over the centuries. This, I believe, is the challenge facing the Muslim Personal Law Reforms Committee headed by Justice Saleem Marsoof (The JSM Committee). Can it arrive at a consensus that represents revelation tempered by reason in response to the clarion call for justice and equality made by increasing numbers of Muslim women and some men in Sri Lanka?

From a historical perspective, Islam was way ahead of its time in uplifting women’s status. Many of the revelations in the Qur’an are by nature reform-oriented, transforming key aspects of pre-Islamic customary laws and practices in progressive ways. Yet it has never been an exhaustive and immutable body of laws. The spread of Islam deep into Africa, Asia and Europe was facilitated by its ability to adapt and integrate aspects of local cultures. Indeed, Muslim laws around the world are shaped by the social, political, economic and cultural conditions obtaining in the areas where it gained a foothold, giving rise to a diversity of socio-legal practices. A close look at Muslim socio-legal systems around the world reveals an immense range of interpretations of laws and traditions.

Moreover, in this process of change and modernisation, traditional principles of Islamic law in the spheres of commercial law, criminal law and tax law were in many instances put aside by reformist leaders/states in favour of secular laws. Thus, Marie-Aimée Helie-Lucas, an Algerian women’s rights activist and founder of the international solidarity network Women Living Under Muslim Laws (WLUML), refers to the ‘myth of homogeneity’ in the Islamic world. As she explains, there is no one ‘Islamic law’, there is only the Muslim law of Sri Lanka, India, Tunisia, etc[2].

Reinterpretations of the Quran based on revelation and reason have paved the way for the radical reform of Muslim Personal law to ensure justice and equality for women in a number of other countries. Examples of such reform include: Tunisia, which has banned polygamy; Malaysia, which has recognised a homemaker wife’s right to claim a share of matrimonial assets upon divorce; and Morocco which set a minimum age of marriage at eighteen for both men and women.[3] These examples provide several different pathways to MPL reform from within the framework of Islam. Here I focus on thakkayyhur (eclectic choice), and ijtihad (reinterpretation by the state) as offering two possible routes to reform.

Thakkhayyur

Thakkhayyur means selection and preference of one among the available rulings or opinions of a single madhhab (sect), or of different madhhabs, for the purpose of legislation and enforcement. This was possible and acceptable as the four schools of Sunni jurisprudence differed from each other on a wide range of issues, yet recognised each other as orthodox and as equally legitimate and authoritative versions of the Shariah.[4]

This draws upon a Qur’anic injunction by the Prophet that “Difference of opinion among my community is a sign of the bounty of God!”. Moreover, every Muslim is free to follow the school of one’s choice, and even free to change one’s school at any time, or on a particular issue provided one does so with great conviction. This method has been widely employed as a means of flexibility and choice among the rulings of the existing madhhabs.

For instance, thakkhayyur has been employed to reform Hanafi divorce laws, which do not recognize judicial divorce and are generally restrictive, by borrowing from Maliki law.[5] In the same vein, Hanafi provisions have been employed to strengthen Maliki requirements of a valid marriage contract in Maliki jurisdictions.

This was the approach adopted by Indian reformers who drafted the Dissolution of Muslim Marriage Act of 1939. As women under Hanafi law (the law of the majority of Muslims in India) had a very limited right of divorce, they often resorted to the practice of renouncing Islam, as apostasy resulted in the dissolution of marriage. Muslim organisations and scholars who recognised the need for reform agreed that the solution to the problem lay in the adoption of the more liberal Maliki law on the subject of divorce. This found expression in the Dissolution of Muslim Marriage Act of 1939, applicable to all Muslims irrespective of their sect. The law recognised a number of grounds for divorce[6] and also held that renunciation of Islam would not result in the dissolution of the marriage.

The scope of thakkhayyur has been further widened by the selection of the views of individual jurists outside the existing madhhabs, if the view so chosen offered the most appropriate of all the available views for purposes of legislation and enforcement. In Turkey, the Ottoman Law of Family Rights abolished child marriage by adopting the views of Mu’tazili scholars Ibn Shubrumah, Abu Bakr al-Asamm and Uthman al-Batti. These jurists took the view that there is guardianship for the marriage of a minor should be abolished on the ground that such a union imposes unnecessary restrictions on a child’s freedom of contract by binding the child to a marriage that cannot be reversed even on reaching adulthood. Legislation in Egypt, Syria, Sudan, Morocco, Tunisia, Iraq and other countries followed suit and effectively outlawed child marriage by utilizing the expedient of thakkhayyur.

The eclectic expedient was exploited to its fullest in some countries where the choice was extended to include principles derived from Shia law. In Sunni-dominated Iraq, the Iraqi law of 1963 adopted the Shia law of succession for all Iraqi nationals. The Shia law emphasizes the nuclear family unit and gives priority to the descendants of the deceased over any collateral. The Sunni law, in contrast, based on the ancient tribal system of society, emphasizes the rights of male agnates. Thus under Sunni law, while a daughter is entitled to her Qur’anic share of the estate, she can claim no more; any residue is passed on to a male agnate, however distant. The Shia law was felt to be more appropriate in modern Iraq, where tribal ties had more or less disintegrated and the immediate family unit had gained in importance.

Ijtihad

In the years after the death of the Prophet, Islamic jurisprudence developed through human reasoning. It fell upon the learned jurists to interpret the Shariah to suit the ever-changing needs of society, until the door of Ijtihad was deemed to be closed around the 10th century. In the centuries that followed, generations of jurists were denied the right of independent inquiry. They were instead forced to simply follow and imitate the rules laid down by their predecessors.

Advocates of equality and justice within Islam have, however, reclaimed the right to ijtihad, proceeding on the basis that Qur’anic injunctions relating to women must be seen in their cultural context. The argument is that Qur’anic verses which permit discriminatory practices against women are not normative standards applicable for all times. In pre-Islamic Arabia, women had few rights, they had no property rights nor rights of inheritance either from their fathers or their husbands. There were no limitations on the number of wives a man could take. Female children were not welcome and were often buried alive. Thus in the context of 7th century Arabia, the Qur’anic formula on gender was progressive.

Based on this logic, a number of laws, which have an impact on women, have now been reinterpreted and rewritten in many Islamic countries either through legislative reform or by judicial decisions. For example, Tunisia’s Law of Personal Status of 1957 not only declared that any divorce outside a court of law[7] is devoid of legal effect (on the basis of the verse in the Qur’an which states ‘where discord arises between spouses, then appoint arbitrators’), but went further and gave both husband and wife the same right to obtain a divorce. The law was justified on the basis of Surah 2: 228 that ‘women have rights similar to those of man’.

The Tunisian law of personal status completely prohibited polygamy on the ground that it is impossible in modern conditions for a man to treat all his wives equally in every respect – love, affection, esteem, clothing, lodging, necessities – as required by Surah Nisa, which states, ‘You may marry two, three or four wives but no more… If you cannot deal equitably with all, you shall marry only one’, and Surah 4: 129 which states, ‘You will not be able to be equitable between your wives, even though you be eager to do so’.

Ijtihad has provided the basis for the complete overhaul of the principles underlying family law in both Turkey and Morocco. The Turkish Civil Code of 2001 abolished the supremacy of men in marriage and established full equality of men and women in the family. The new Code set the equal division of property acquired during marriage as a default property regime, assigning an economic value to women’s hitherto invisible labour for the well-being of the family household. It also sets 18 as the legal minimum age for marriage for both males and females (it was previously 17 for males and 15 for females), gives the same inheritance rights to children born outside of marriage as to those born within marriage, and allows single parents to adopt children. The law was complemented by a constitutional amendment, which redefined the family as an entity that is ‘based on equality between spouses’ on the basis that ‘the family is the foundation of Turkish society’.

In the reform movement that resulted in a new Morroccan Code of Family Laws, known as the Mudawwana, in 2004, reformers explicitly invoked and utilised Ijtihad with the intention to ‘free women from the injustices they endure, in addition to protecting children’s rights and safeguarding men’s dignity’. The King, in his address to parliament presenting the reforms, described the new code as ‘modern’, while emphasising that the reforms were not intended to address women’s rights exclusively, but to address issues associated with the family as a whole.

The Mudawwana elevates the status of women, limits some rights that men have over women, and grants women more affirmative rights in their affairs. It confers responsibility for the family jointly upon the husband and wife, and increases to 18 the minimum age for marriage – for both males and females. The new code also places strict restrictions on the practice of polygyny: to marry again, a man must obtain a judge’s permission as well as the consent of his wife. Additionally, the Mudawwana limits a man’s unlimited and unilateral access to divorce.

These are the examples that the JSM Committee should be looking to in formulating its recommendations, without trying to appease conservative and misogynist forces within the community who believe that women and girls are inferior to men and do not deserve equal rights and who are rejecting both thakkhayyur and ijtihad as legitimate pathways to reform.

The position being taken by those opposing reform that all reform must be within the Shafi school of law in particular is untenable, given the lack of evidence to establish that all Muslims in Sri Lanka were followers of Shafi law prior to colonial rule. That Sri Lankan Muslims are considered to be adherents of Shafi law may be an accident of history rather than a historical fact. It is connected to the first codification of Muslim law under Dutch rule of the maritime provinces. From historical records we know that when Governor Falk looked to codify the different family laws applicable in the maritime provinces under his power, he ended up importing a code of Muslim laws from Batavia – another Dutch colony which was predominantly Shafi. It was this Code which was translated and adapted by the British as the Mohomadan Code of 1806, first replaced by the Muslim Marriage and Divorce Ordinance of 1929 and then the Muslim Marriage and Divorce Act of 1956, both of which sought to ‘save’ Shafi law.

The question is – can the JSM Committee prevail over conservative and misogynist forces within the Muslim community in Sri Lanka and find a balance between human rational thought and revelation (one of the singular distinctions of Islam) to ensure justice and equality for Muslim women in Sri Lanka? Or will the Committee allow forces of unreason to win over reason to perpetuate discrimination against half of the Muslim community?

[4] Sunni Islam divides into 4 main schools – Shafi, Hanafi, Maliki and Hanbali. The majority of Muslims in Sri Lanka are considered to be of the Shafi school.

[5] Maliki divorce law recognises judicial separation and divorce that may follow a failed attempt at arbitration in marital conflicts.

[6] These grounds included, failure to maintain for two years, imprisonment of the husband for seven years, lack of knowledge of the whereabouts of the husband for four years, failure to perform marital obligations for three years, and impotency of the husband at the time of marriage and after.